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17th February 2021

Employee’s engagement in grievance procedure was not an affirmation of contract

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In Gordon v J & D Pierce (Contracts) Ltd the Employment Appeal Tribunal (EAT) found that an employee had not affirmed his employment contract by engaging in the employer’s grievance procedure and accordingly did not lose the right to claim constructive dismissal.

The employee resigned and brought a claim of constructive dismissal after his working relationship with his manager deteriorated. The Employment Tribunal (ET) concluded that there had not been a breach of the obligation of trust and confidence as there was fault on both sides. The ET held that even if there had been a fundamental breach of contract which entitled the employee to resign, he could not succeed with his constructive dismissal claim because he had affirmed his contract by engaging in the grievance procedure. The employee appealed.

The EAT rejected the appeal on whether there had been a breach of trust and confidence by the employer, but disagreed with the ET regarding affirmation of the contract. The EAT held that reliance on one contractual right does not automatically signify acceptance that all other contractual rights are intact; grievance or disciplinary appeal provisions could survive even where the rest of the contract is terminated as a result of the breach. The EAT also commented that it would be unsatisfactory if an employee were unable to accept a repudiation because they wished to seek to resolve the dispute by means of a grievance procedure.

For more information on any of the items raised in this article please contact the Employment Law team.